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2-2-06 - LIABILITY UPDATE - Medical liability reform in the State of the Union, more....
by Donna Baver Rovito, Editor, "Liability Update"
1...Commentary 3.....President George W. Bush, State of the Union Address, Jan. 31, 2006 4.....AMA: President Bush Makes Health Care a Domestic Priority in State of the Union 5....Kaisernetwork.org National Politics & Policy | Bush Calls for Human Cloning Ban, Medical Liability Reform 6....Doctors for Medical Liability Reform Release Doctors for Medical Liability Reform (DMLR) Applauds President Bush's Support for Vital Medical Liability Reform Legislation 7....Health Coalition on Liability and Access (HCLA) Release HCLA Praises President Bush's Continued Commitment to Medical Liability Reform 8....Californians Allied for Patient Protection Media Statement on President's Endorsement of National Medical Liability Reform 9...Washington Post Dispelling Malpractice Myths 10....Reuters Primary care about to collapse, physicians warn 11.... Health Care News
Litigation Raising Health Care Costs, Study Says 13...from PaMPAC board member Dr. Marilyn Heine
1...Commentary
This year it was especially gratifying to hear the President mention medical liability reform in the State of the Union Address....and we need to be ready to start making contact with our Representatives and Senators to help him make it happen.
Because despite claims that the crisis is over here in Pennsylvania - and claims that the "crisis" never existed in other places in the first place, that it was all about errors or gouging doctors or whatever the objection of the week is, the practice of medicine continues to erode - and with it, inevitably, patient care.
Does health care need OTHER fixes? Absolutely. But the medical liability aspect of the health care delivery crisis is especially urgent because it's just SO EASY to pack up your frustration, your anger, your family and your practice and GO SOMEWHERE ELSE. And where does that leave the patients....?
The President is firmly in our corner on this issue, and will be opposed by the usual suspects, led by a coalition of personal injury lawyers, fake consumer advocates, sympathetic victims, hand-out journalists and legislators who receive support from any or all of those categories....
Since we don't have as much money to smear around as the Dark Side does, we'll have to make up for it with sincerity, scientific evidence and plain old hard work.
We can DO that.
More to come, I'm sure....
DBR
A vote in the U.S. House
Wednesday cleared the way for restoration of Medicare physician
payments to 2005 levels, halting the 4.4 percent payment cut that
took effect Jan. 1. 3.....President George W. Bush, State of the Union Address, Jan. 31, 2006 ((Excerpts about health care and medical liability...)) "Keeping America competitive requires affordable health care. Our government has a responsibility to help provide health care for the poor and the elderly, and we are meeting that responsibility. For all Americans, we must confront the rising cost of care, strengthen the doctor-patient relationship and help people afford the insurance coverage they need. We will make wider use of electronic records and other health information technology, to help control costs and reduce dangerous medical errors. We will strengthen health savings accounts by making sure individuals and small business employees can buy insurance with the same advantages that people working for big businesses now get. We will do more to make this coverage portable, so workers can switch jobs without having to worry about losing their health insurance. And because lawsuits are driving many good doctors out of practice, leaving women in nearly 1,500 American counties without a single OB-GYN, I ask the Congress to pass medical liability reform this year."
4.....AMA: President Bush Makes Health Care a Domestic Priority in State of the Union - 1/31/2006 Contact: Brenda L. Craine, 202-789-7447 or Katherine M. Hatwell, 202-789-7419 WASHINGTON, Jan. 31 /U.S. Newswire- Following is a statement by American Medical Association (AMA) President J. Edward Hill, M.D.: "The American Medical Association is pleased that President Bush addressed important health policy issues in tonight's State of the Union and highlighted the importance of 'strengthening the doctor-patient relationship.' It is our hope that this speech will spur even greater dialogue on health care issues that impact all Americans. "The rising cost of care is a growing concern in this country. The AMA believes that we must engage patients as partners to successfully manage costs and achieve greater value from the resources devoted to health care. "Consumer-driven health care encourages patients to take a greater interest in their health care and how they spend their health care dollars, by putting patients in the driver's seat. The AMA believes that health savings accounts (HSAs) empower patients to have greater control over their health care decision- making, and are an important choice in the health insurance mix. Coverage choices such as HSAs provide flexibility and portability for patients, allowing them to change jobs without worry. "Improving the quality of health care has been and continues to be a top priority of the AMA. We are excited by the promise of health information technology. Physicians are interested in new technology that helps them improve patient safety and increase efficiency. "Enacting meaningful medical liability reforms is the top legislative priority of the AMA, and we applaud President Bush for calling on Congress to pass medical liability reforms this year. Multiple polls show that nearly three-quarters of Americans support passage of medical liability reforms. "In addition to medical liability reform, the AMA's advocacy agenda for 2006 includes Medicare physician payment reform, expanding coverage for the uninsured, improving public health, patient safety and quality improvements in health care and managed care reform. The AMA looks forward to working with the Administration and Congress on these issues, and others, to improve the nation's health care system."
5....Kaisernetwork.org National Politics & Policy | Bush Calls for Human Cloning Ban, Medical Liability Reform -Feb 01, 2006 Medical Liability Comments
According to a White House release, Bush's proposal would cap noneconomic damages on medical malpractice claims "to reasonable amounts," prohibit malpractice claims from being considered by a court "years after an event" and mandate that defendants "pay judgments in proportion to their fault."
His proposal would allow for "punitive damages for egregious cases where they are justified," according to the release (White House release, 1/31).
The Senate in February 2004 did not approve a bill (S 2061) that would have capped noneconomic damages in medical malpractice lawsuits against OB/GYNs.
Bush said, "Without the passage of reasonable reforms, the nation's badly broken medical liability system will continue to drive physicians like obstetricians and gynecologists out of the practice of medicine and drive up the costs of health care for all Americans" (Kaiser Daily Women's Health Policy Report, 2/25/04).
6....Doctors for Medical Liability Reform Release Doctors for Medical Liability Reform (DMLR) Applauds President Bush's Support for Vital Medical Liability Reform Legislation Group Calls on the U.S. Senate to Vote February 1, 2006 - PRNewswire In last night's State of the Union speech, President Bush called on Congress to address the growing medical liability crisis by passing vitally needed reform legislation. "And because lawsuits are driving many good doctors out of practice - leaving women in nearly 1,500 American counties without a single OB-GYN - I ask the Congress to pass medical liability reform this year." Stuart L. Weinstein, M.D., Chair of DMLR, praised President Bush for his continued strong support of medical liability reform and called on the U.S. Senate to act without delay. "I urge the U.S. Senate to heed the President's call and pass medical liability reform now," said Dr. Weinstein. "The situation is critical and patients cannot afford to wait any longer. Medical lawsuit abuse is forcing good doctors to move out of state, retire early or cut back on many risky, life-saving treatments, leaving patients to wonder whether they'll be able to find the care they need when they need it most. Meanwhile, younger doctors are shunning high-risk specialties at a time when an aging population is placing even greater demands on our health care system." DMLR is reaching out to patients, concerned citizens and physicians across the country to educate them on medical lawsuit abuse and the patient access to care crisis. The response has been overwhelming. "The public understands that personal injury lawyers have created a system that does not protect patients," said Dr. Weinstein. "And they want their lawmakers in Washington to put it to an end." The U.S. House of Representatives passed medical liability reform legislation 12 times since 1995 - three of those times were in 2005. This important issue has repeatedly stalled in the U.S. Senate, where it has been held up by a mere handful of votes. The Senate of the 109th Congress has not yet addressed medical liability reform. Doctors for Medical Liability Reform (DMLR) is a national coalition of 230,000 practicing medical specialists committed to protecting patients' access to healthcare by supporting federal legislation that will reform our nation's broken medical liability system. DMLR has launched a major national grassroots effort called Protect Patients Now that includes physicians, patients and concerned citizens across the country. Source: Doctors for Medical Liability Reform
7....Health Coalition on Liability and Access (HCLA) Release HCLA Praises President Bush's Continued Commitment to Medical Liability Reform Urges Congressional Action to Preserve
Patient Access
8....Californians Allied for Patient Protection Media Statement on President's Endorsement of National Medical Liability Reform BUSINESS WIRE Feb. 1, 2006 FROM: Peter DuBois Chairman, Californians Allied for Patient Protection
"If ever there was a time for a national push to contain the skyrocketing cost of healthcare it is now. The gold standard in medical liability reform law is California's Medical Injury Compensation Reform Act (MICRA). This landmark law has been proven to promote patient access to care by reducing and stabilizing medical liability insurance costs. "Medical liability reform is a patient protection issue, not a partisan issue, and we urge all members of Congress to support it. In California, MICRA passed with overwhelming Democratic and Republican support and was signed by a Democratic Governor. "The landmark law has discouraged expensive and unnecessary "defensive" medical procedures, and has been effective in making healthcare available in rural and low-income areas. The federal government pays for 50% of all health care in the United States. MICRA-like reform means more care for patients. It means dollars spent on treatment and training, rather than being siphoned away to legal and courtroom expenses. "After 30 years experience with MICRA, we know that this reform works. Recent studies have concluded that efforts to deviate from the current delicate balance -- raising the lid on non-economic medical liability awards, for example -- would cause insurance rates to soar, lead doctors to reduce services for those most at risk or even quit practice. "We caution lawmakers that deviations from the current MICRA model would likely have devastating consequences for patients. MICRA maintains access to care while helping to control costs."
9...Washington Post Dispelling Malpractice Myths
11.... Health Care News Litigation Raising Health Care Costs,
Study Says
An October 2006 report from the Manhattan Institute shows the efforts of trial lawyers to target health care providers for profit are raising U.S. health care costs. Trial Lawyers, Inc.: Health Care, from scholars at the institute's Center for Legal Policy, concludes this area of litigation is significant because "health care represents over 15 percent of the U.S. economy, up from only 5 percent in 1961" according to U.S. Centers for Medicare and Medicaid Services (CMS) data. "While the excesses of the litigation industry alone cannot explain America's mounting medical costs," the study notes, "litigation is a large, and growing, contributor to our health-care bill." 'Tort Tax' Raises Costs Medical malpractice liability--"the 'tort tax' on doctors and hospitals, whose costs constitute the majority of health expenses," as it is described in the report--has grown much faster than overall health care inflation, according to 2004 data from the global management corporation Tillinghast-Towers Perrin. Medical malpractice liability alone constitutes more than 10 percent of the U.S. tort tax, which by 2003 represented more than $3,300 for the average family of four, according to Tillinghast-Towers Perrin. Medical malpractice tort claims awarded by courts, as well as pretrial settlements, provide U.S. trial lawyers with their largest health care sector revenue stream, according to the Manhattan Institute report. Litigation over pharmaceuticals and medical devices also exacts a staggering cost on the industry, notes James R. Copland, director of Manhattan's Center for Legal Policy. The drug maker Wyeth, for example, has set aside a reserve of $21 billion to deal with litigation related to the obesity medication Fen-Phen. Merck's exposure to Vioxx lawsuits may total as much as $50 billion, the report notes. "Such figures are astronomical in comparison with these companies' individual budgets, representing nine to twelve times each company's annual research and development costs," the report notes. "In fact, since each drug was widely used for only about four years, the approximate annualized liability cost of these two drugs comes to almost $18 billion--equivalent to 10 percent of the annual revenues for the pharmaceutical industry as a whole." Looking ahead, the big story for 2006 will be Vioxx litigation, says Center for Legal Policy Director James Copland. "Expect Merck to lose more multimillion dollar verdicts (though it will win its share, too)," Copland predicted. "Unless Congress acts to correct mass tort litigation for pharmaceuticals, the cost of Vioxx lawsuits for Merck will continue to rise--to $50 billion or more." Defensive Medicine Costly The direct costs of health care litigation only scratch the surface of the toll such lawsuits exact on the U.S. economy and on health care, the Manhattan Institute report emphasizes. "Med-mal lawsuits tend to inflate health care costs by encouraging 'defensive medicine'--unnecessary procedures and referrals that doctors and hospitals prescribe in order to limit their exposure to future litigation," explains the report. "Studies suggest that defensive medicine costs are several times higher than the direct liability costs themselves." The report contends consumers are not made safer by product liability litigation over drugs and medical devices: "Such suits inevitably drive innovation from the marketplace that would lead to net health improvements--not only for U.S. society but for the entire world." Since any drug manufacturer might be held accountable for unanticipated liability of the magnitude of Vioxx and Fen-Phen, the study notes, every drug company will consider such numbers in its research and investment decisions ... and many drugs that would otherwise save lives or improve the quality of lives will never reach the market. Defenders of tort litigation assert it has a deterrent effect on risky or negligent activity, which it undoubtedly does, Copland admitted. But "in our current civil justice system it also deters any activity that might lead to high-cost lawsuits, which is not at all the same thing as actual risk," he pointed out in an introduction to the report. When a liability system punishes indiscriminately, it does not efficiently deter bad conduct but rather reduces health care access by reducing the supply of doctors, the report says. Fear of litigation also encourages the use of expensive, unnecessary, and often dangerous procedures, and it lowers the expected return from research into new medicines and medical devices that can save lives. The report also notes the litigation industry "does a very poor job compensating the victims it professes to be protecting." Most medical malpractice claimants are not harmed by avoidable doctor error, and most medical malpractice victims never sue. Plaintiffs typically wait years to recover damages and typically receive less than 50 cents on the dollar, with lawyers' and administrative fees soaking up the majority of settlements and verdicts. Lawsuits Threaten Vaccine Production Medical malpractice litigation will continue to affect targeted specialties, such as obstetrics, neurology, and emergency room care, Copland said. The variation will be sizable among states. Some states, having passed recent tort reform legislation, will get better; others, like Wisconsin, have worsened their situation through judicial activism, noted Copland. "Nationally, I wouldn't expect as rapid a rise in premiums as we have seen in recent years, because the past few years' rate increases have helped return insurers to a manageable position, and because I expect a flat-to-rising interest rate environment, which lowers the discounted cost of insurers' liabilities," Copland said. "A key fight at the national level to watch in 2006 is whether the government can craft a coherent response to the potential avian flu outbreak," said Copland. "Vaccines are particularly susceptible to litigation, and although Congress has shielded some existing vaccines from liability, new vaccines and other drugs vital to public health threats remain vulnerable." Susan Konig (konig@heartland.org) is managing editor of Health Care News. For more information ...The Manhattan Institute's Trial Lawyers, Inc.: Health Care report is available online at http://www.triallawyersinc.com/healthcare/hc01.html.
12....I-Newswire Malpractice Litigation is Driving
Mammography Toward Extinction "The Death of Mammography: How Our Best Defense against Breast Cancer Is Being Driven to Extinction", will be released January 2006. Co-authored with physician colleague, Alberto Righi, M.D., the book is about breast cancer and mammography and that if we continue on our current course, very shortly mammography will no longer be available widely, or at all, for the diagnosis of breast cancer. ((Excerpt)) Breast Cancer and Mammography Cancer has been with us since the dawn of mankind. At one time people thought cancer was a product of industrialization, but archaeological finds would reveal that the oldest specimen of cancer found in a human was discovered in the remains of a female skull sometime during the Bronze Age between 1900 and 1600 BC. Breast cancer has been documented since the 17th century BC, though back then it was treated with pretty barbaric means. The history of cancer, and breast cancer in particular, is varied, and can be found in "The Death of Mammography". Can We Save The Mammogram? The art and science of mammography are not infallible even under the most carefully controlled conditions, however a reduction in mortality from breast cancer has been exhaustively proven. The reason: early diagnosis. Even though the signs of early breast cancer can be very subtle, mammography is a woman's best bet for the survival of breast cancer. In 2004, the American Cancer Society reports that 215,990 new breast cancer cases in women will be diagnosed, and 40,100 will die of it. Women are encouraged to get a mammogram every one-two years, after the age of 50. However, women have been misled, and are under the false impression that mammography is foolproof, and if the exam is done early enough and often enough, breast cancer can be detected, treated, and contained. In all cases, even under the most optimal circumstances, research has shown that as high as thirty percent of breast cancers are not visualized on mammography. It does not mean the radiologist is negligent. It means that mammography has become the most frequent modality in lawsuits claiming malpractice against radiologists. In February 2004, in Florida, a jury found two radiologists liable of failing to diagnose a plaintiff's breast cancer. Though three radiologists compared and read three mammograms as normal, nine months later the woman found a lump, which turned out to be malignant. She sued; she had an aggressive attorney, an empathetic jury, and won. The leading cause for medical malpractice claims is failure to diagnose breast cancer on a mammogram. Experts in the field say such lawsuits mainly stem from serious misconceptions about the ability of mammograms to detect cancers and from an assumption that the radiologists who read mammograms should be able to see things that may be discernible only in hindsight. Leonard Berlin, M.D., chairman of radiology at Rush-Presbyterian-St. Luke's Medical Center in Chicago says the public has a highly inflated view of the accuracy of mammography. Radiologists across the country are faced with the prospect of litigation and the high cost of malpractice insurance, and are now refusing to read mammograms. Radiology residents are passing over specializing in breast imaging, and over 700 mammography centers across the United States have closed their doors in the last few years. The current medical liability crisis in this country is real and is not going to magically disappear any time soon. One of the original goals of this book was to present an unbiased account of decreasing access to health care services, specifically mammography. Sources from all the players involved, physicians, liability insurers, and plaintiff and defense attorneys, were contacted and questioned regarding various aspects of the issue. Surprisingly or not several malpractice plaintiff attorneys declined to give interviews. One in particular answered questions presented to him, then reneged. In fact, he gave an honest opinion regarding the crisis, which most plaintiff attorneys believe is non-existent, and stated that "if mammography dies it will not be because of the lawsuits arising out of the destruction of the lives of those women and their families that have been betrayed." The Association of Trial Lawyers of America (ATLA) was also contacted for interviews; no response was forthcoming. This is one reason it made it difficult to present an unbiased view. No one from the ranks of plaintiff trial lawyers attempted to back their assertion of protecting America's malpractice "victims." However, a former trial attorney, currently a law professor, gave some insight, closely paralleling those of the ATLA, into the current malpractice liability issue. It appears a moot point in any case, because these lawyers are very powerful, are set apart from most industries, and pretty much a law unto themselves. That does not mean it cannot change, however. The information is presented in the book how it was researched. By that is meant as efficient and unfettered as possible; sources were checked for reliability, and a representation of all players was invited to participate. However, there is such a plethora of information about mammography and breast cancer and their various aspects, each topic could not possibly have been written about comprehensively in one book, and probably would require volumes. The intent was to present an overall view of the most important aspects of breast cancer and mammography, and their relationship to malpractice litigation and the decrease in access to mammography. There is a breast cancer crisis in this country, and unless something is done about it, it will be too late to save mammography, the only screening test currently available for detecting breast cancer.
13...from PaMPAC board member (and all-around terrific doctor AND advocate!) Dr. Marilyn Heine Dear Colleague:
AMPAC Candidate Workshop
If you would like to be added to or removed from
the Liability Update Information Network, or if you have
information about yourself or a colleague relocating, retiring
early, giving up medicine, private practice or curtailing services
due to the medical liability crisis please email
ROVSPA@aol.com.
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